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Prosecutors win appeal in 1989 son killing case

Brian Skoloff Associated Press

Updated:
04/17/2014 03:25:49 PM EDT

PHOENIX (AP) — A retired detective will be forced to testify at the retrial of an Arizona mother charged with having her son killed in 1989 after he asserted his right against self-incrimination and refused take the stand again, the state Court of Appeals ruled Thursday.

"As citizens, each of us has a duty to testify in criminal proceedings in our courts when called upon to provide relevant information," the three-judge panel wrote in its decision overturning a lower court judge's ruling that allowed the former officer to assert his Fifth Amendment right.

The ruling is a major victory for prosecutors who insist Debra Milke is guilty and are planning a 2015 retrial.

Authorities say Milke had two men shoot her 4-year-old son in the desert outside Phoenix. She was found guilty in 1990 and spent more than two decades on death row before a federal appeals court last year overturned her first-degree murder conviction.

Milke has since been released on bond.

The original case against Milke rested largely on her purported confession, which now-retired Phoenix police Detective Armando Saldate did not record. That left jurors with his word alone that she told him about her involvement. Milke has maintained her innocence and denied she ever confessed.

In its ruling overturning Milke's conviction, the 9th U.S. Circuit Court of Appeals cited the prosecution's failure to reveal evidence that could have called Saldate's credibility into question.

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The court cited numerous instances in which he committed misconduct in previous cases, including lying under oath and violating suspects' rights — details that were not provided to Milke's defense lawyers during her trial. The federal appeals court also asked the Justice Department to investigate whether Saldate had committed civil rights violations.

Saldate, who has not returned repeated telephone calls from The Associated Press, claims that he fears potential federal charges if he testifies again based on the appeals court accusations of misconduct.

In December, Superior Court Judge Rosa Mroz granted Saldate's request to assert his Fifth Amendment right, allowing him to refuse to take the stand at Milke's retrial.

Prosecutors, however, argued before the state Court of Appeals last week that Saldate did not have the right to assert the Fifth Amendment because he has no reasonable fear of prosecution after both county and federal authorities informed him that they don't intend to seek charges based on any of the accusations leveled by the federal appeals court.

Saldate's attorney countered that authorities had offered no guarantees that he wouldn't face charges in the future based on his testimony at the retrial.

"Based on a review of the record before us, Saldate has not shown a real and appreciable risk of prosecution for such claims," the state Court of Appeals wrote in ordering that he may be compelled to testify against his will.

The ruling was crucial to the state's case against Milke because Judge Mroz had previously said that if Saldate didn't testify again, the purported confession likely couldn't be used at her retrial.

Saldate's attorney, Treasure Van Dreumel, didn't return a telephone message seeking comment on Thursday. Milke's attorneys also did not respond to a request for comment. Prosecutors declined to discuss the ruling.

However, on Wednesday, Maricopa County Attorney Bill Montgomery said that if the court ruled in the state's favor, he expected Saldate's attorney to appeal to the state Supreme Court.

Milke's defense lawyers are still seeking dismissal of the entire case against her, noting in a previous motion that "the only direct evidence linking defendant to the crimes is the defendant's alleged confession to Saldate."

Milke, whose mother was a German who married a U.S. Air Force military policeman in Berlin in the 1960s, has drawn strong support from citizens of that nation and Switzerland, neither of which has the death penalty.

The two men convicted in the child's death did not testify against Milke and remain on death row.